Every time one turns around one finds another example of the disadvantages
facing producers and
consumers alike in a small technology market like the blindness field. Here
is the latest crisis hanging
over everyone interested in the refreshable Braille display technology used
in the portable note takers
and in the Braille screen displays of desktop and laptop computers. But this
time there may be
something consumers can do to help. Larry Israel, Chairman, President, and
CEO of Telesensory
Systems, Inc., wrote the following memo for the Braille Monitor summarizing
the history of the problem:

Subject: The Alva Patent Situation
date: May 28, 1997

Deane Blazie asked if I would provide you with some historical background
relating to the Alva
patent situation. In approximately mid-1992, Telesensory became aware that
U.S. patent 4,985,692
had been issued in January, 1991, to Jacob (Jaap) Breider and Arend Arends.
Jaap Breider is
President of Alva B.V. of the Netherlands, a firm which is a major supplier
of refreshable Braille
displays. We later learned that similar patents had been obtained in Europe,
Canada, and Australia, all
of which were assigned to Alva B.V. in the Netherlands, a company of which
Breider is Managing
Director.

The patent purported to cover what is commonly referred to as "cursor
routing." This function
typically involves some kind of switch near each Braille cell, which, when
depressed, will bring the
cursor on the screen to that position. This is claimed to be a convenience
to users of refreshable Braille displays. For instance, while reading the
information on the screen (which does not require moving the cursor), if a
typographical error is discovered which the reader wishes to correct, depressing
the cursor switch brings the insertion cursor to that letter, and the correction
can then be made quickly and easily.

In October, 1993, Telesensory received a letter from Jaap Breider claiming
that Telesensory's
Navigator line infringed on the subject patent and requesting discussions
about paying a royalty. (There may have been some earlier correspondence,
but this was the first time I had heard of it, based on my current file search.)
We also have good reason to believe that numerous other companies were similarly
approached at one time or another from that time until the present, including
Baum Elektronik of Germany, Frank Audiodata of Germany, Papenmeier of Germany,
Lameris BV in Holland, Blazie
Engineering in the USA, Tieman B.V. of Holland, KHS of Germany, and Metec
of Germany. In each
case Jaap Breider claimed that his patent was being violated by what had been
since the mid-80's a
common feature in virtually all Braille displays.

He threatened to institute lawsuits against various parties unless they agreed
to pay rather substantial
royalties. To the best of our knowledge, he has never filed a patent infringement
lawsuit, perhaps
because (as I will describe below) there is substantial doubt as to the validity
of his patent, nor is anyone paying royalties to him with respect to this
patent, as far as we know.

It was and is the opinion of Telesensory that the patent was essentially invalid
because, among other
reasons, (a) a number of products had been marketed in Europe and the USA
as early as 1985 which
used the same cursor-routing scheme that was now patented; (b) academic papers
had been written at
the University of Stuttgart (Germany) which predated the European patent application
by more than a
year and disclosed the idea of cursor routing; and (c) by the time Breider
applied for the patent, the idea was obvious (a bar to a patent in almost
every country) and was being widely used in many different, independently-developed
products.

The history of the U.S. patent is interesting because it has a bearing on
whether the patent is valid.
The application was filed on January 20, 1988. It claimed priority based on
a Netherlands patent
application filed January 23, 1987. This date is quite important, because
it is my understanding that if it
could be shown that a device embodying the same technology or idea was marketed
more than one
year before that priority date of January 23, 1987, the U.S. patent would
be invalid. I do not specifically know the effect on the patents in the other
countries, but I think it likely that the impact on their validity would be
similar (although patent law is sufficiently complex and variable from country
to country, that I would hesitate to make any general claims on this point).

Note that I have stated above that other products using this same idea were
marketed as early as
1985 in the USA and Europe. If that could be proven, then the various patents
would be invalid, since
any date in 1985 is clearly more than one year earlier than January 23, 1987.
As I will show in a
moment, that has in fact been proven.

Over the next few years considerable action took place in the European Patent
Office (EPO), mostly
in Munich, in what is called an "opposition." Various other manufacturers,
including Baum Elektronik
and Metec in Germany, argued to the EPO that the patent was invalid because,
among other reasons, of "prior art." It was exceedingly difficult
to reach a resolution because many documents were unclear and difficult to
recover since considerable time had elapsed. The EPO issued various interim
or tentative decisions, first favoring one side and then the other.

However, a very recent ruling by the EPO in Munich, dated May 5, 1997, contains
the following
points:

1. The Baum Braille-Box was publicly available in 1985.
2. The available descriptions of that device
indicated that it "destroys the novelty" of Claim #1 in the European
patent being examined (which is
basically the same as the U.S. patent).
3. If certain associated allegations were supported, for example, by affidavit
(a relatively easy matter),
then the patent could no longer be maintained in its present version.

The parties (Alva and Baum) were given two months more to submit additional
information. While
the patent holder still has the right to protest further, if that were all
there were to it, it is highly likely that the European patent would finally
have been rejected, and with it, all the other patents would probably fail
as well. However, there is a peculiarity in European law, as I understand
it, which allows a patent to be restated to try to make it OK, even after
it has been found to be invalid after it was granted (as here). I do not believe
this is possible under U.S. patent law.

There is little doubt that Alva will now rewrite the patent, along lines suggested
by the EPO, so that
the opposition and argument will still not reach an end. It is less clear
whether the patent can be
sustained under U.S. law since I don't think U.S. law permits rewriting the
patent once it has been
granted. If it's found invalid, that's the end of it. But, once again, I must
clearly state that I am not a
patent attorney, and this is a particularly arcane legal area, which is difficult
to understand with any
certainty.

So this still leaves considerable uncertainty, and it may well take years
to play this out to its final
ending. Meanwhile, valuable resources, which could be put to better use benefiting
blind people around the world, are being spent in a patent battle in Europe,
likely to be followed by one in the USA if necessary. The view of the many
companies objecting to Breider's patent is that he patented something which
was obvious and being widely used and which he did not, in fact, invent--as
most lay people would understand the term. They believe that he was able to
get his patents because no one in this small industry has patent lawyers busily
watching out for this kind of thing so that they can object at an early stage
(which makes the job much, much easier). The fact is that many patents are
granted which should not be, simply because no one is interested enough or
aware enough to object at an early stage. Most of the time it makes no real
difference.

In the interests of settling this matter and avoiding legal fees, a number
of companies have offered to
pay royalties to Breider in some commercially reasonable amount. Breider's
only demand until very
recently was for a royalty of four percent of the selling price of Braille
displays using cursor routing or its equivalent (in his opinion). This would
amount, for instance, to more than $200 on a typical 40-cell
Braille display and is quite a substantial amount, which would have to be
passed along to all customers.

After the May 5 EPO ruling of a few days ago and presumably with this information
clearly available
to him, Jaap Breider called me and asked if I was willing to settle on behalf
of Telesensory. I told him
that it was a nuisance and was taking time and that I would be willing to
pay him a moderate amount,
just to be rid of the matter, provided that I could persuade other major manufacturers
to do the same
(which I think could be done). He rejected my offer out of hand, which means
that the battle will
continue.

We are hopeful, as are other companies who manufacture Braille displays, that
this matter can
eventually be put to rest in some way which leaves all the parties feeling
reasonably satisfied. However,
it is unlikely that can be accomplished if Breider continues to insist on
an unreasonable royalty for a
product feature which all his competitors believe should not have been patentable
and for which a patent was obtained only because the patent offices erred
by dealing with an area in which they have little knowledge and where there
was little published information to refute the unsupported claims of the applicant.
In fact, when we have our day in court (which we will do if we are ever sued
for infringement here in the United States), we intend to argue (1) that Breider
was fully aware of the Baum Braille-Box at the time he filed his initial patent
applications in the Netherlands and the USA, (2) that it was wrong of him
not to disclose that information to the respective patent offices, and (3)
that his patent ought to be invalidated on those grounds alone without more
(although there are ample other grounds as well to invalidate the patent).

Here is the history as Jaap Breider
described it to the Braille Monitor. Breider was a student in the
early 1980's studying psychology, particularly artificial intelligence and
cognitive engineering. He is
blind, and he concluded that his work would be easier if he had a Braille
display for his computer, so
he built one, and in February of 1984 he and a partner established a company
in Holland which they
called Alva, Inc.

Breider conducted some experiments using other blind students at his university.
He gave them
computer documents with spelling mistakes and timed them as they corrected
the errors. He determined that, if there were a way to bring the cursor to
the word requiring correction, the task could be completed much more quickly.

He took this idea to his partner, who designed and built the tiny switches
beside each Braille cell
within a week. Breider, who has been in this country for several months, could
not remember exactly
when this technology was patented, but he did not object to the January 23
date provided by Larry
Israel. He said that all the patent applications were submitted at approximately
the same time. He has
not been able to confer with his attorneys about the May 5 decision by the
European Patent Office, so
he was not willing to comment on the company's plans in the light of that
decision. He did say that he
does not at the moment plan to rewrite the European patent because he does
not believe it is necessary
since the court did not "take it off the table."

The obvious question to be answered is what date did cursor routing first
appear and how generally
was the concept adopted? Will knowledgeable and experienced blind users now
volunteer to prepare
affidavits about the dates they first had access to cursor routing and related
points? Some people may
have manuals or data sheets that pre-date the Alva Patent and therefore clearly
show prior art. Letters
or articles from 1985 might also help if they establish that the technique
patented was either obvious or
used prior to January 23, 1986, a year before the patent.

One particularly thorny point is that the patent claims that the ability to
keep one's hands on the
Braille cells while also activating a cursor-routing switch is an important
characteristic. But, as Larry
Israel points out, "This was possible with the bar on a VersaBraille,
which we considered logically
equivalent to the individual switches in a current cursor-routing arrangement,
and the provision of a
switch next to each cell was an obvious extension and provided nothing innovative
or new but was
simply an evolutionary growth in technology that many product developers saw
at about the same time."

Readers who believe that they may have information that could assist in demonstrating
that cursor
routing was available to users in 1985 should contact Larry Israel. Here is
the text of the request he
makes:

Telesensory Corporation is spearheading a group of manufacturers of Braille
products, including
Blazie Engineering and many others, who are organized to deal jointly with
these patent issues, with the
goal of holding down the cost of these products for blind users worldwide.
Any information you may
have can be sent to Larry Israel at Telesensory Corporation, 465 Bernardo
Avenue, Mountain View,
California 94043, (e-mail: israel@telesensory.com). If you have documentary
information, please send
Larry the best original copy you have and retain a copy for yourself. You
should also let Larry know if
you are willing to have your name and occupation identified specifically in
any information submitted to a patent office and if you are willing to sign
an affidavit regarding your knowledge and information, if requested to do
so."

Obviously no one wants to pay royalties for cursor routing to Alva. Deane
Blazie commented that he
did not want to spend money on royalties that would just drive up the prices
of technology for blind
users. Larry Israel agreed but pointed out that Telesensory is spending a
few thousand dollars every
month in legal fees, along with management time and resources, on this case.
As with most legal matters, the nuisance value makes it desirable to try to
settle even unfounded legal claims. But since Breider continues to be unreasonable
in Israel's opinion, it seems unlikely that the matter will be settled
anywhere but in court.

Rumors circulate suggesting that Alva is financially over-extended and that
these royalties would be a
helpful augmentation to the company's income. While Breider agreed that money
is always useful, he
categorically denied that Alva was in financial trouble. He admitted that
1995 had been a poor year for
the group, but he said that 1996 was quite good, and 1997 appears at this
point to be very good
indeed. He says that several of his European competitors are in a much weaker
financial position than
Alva.

He pointed out that in August of 1996 Alva purchased Berkeley Access, a division
of Berkeley
Systems. Such an acquisition took money and could not have been made if Alva
had not been in a
strong financial position. Alva has moved the sales and marketing part of
the operation to new offices in Emeryville, California, and development and
supervision to the Netherlands. The new entity in
Emeryville is now called the Alva Access Group, Inc. Among its other offerings,
it is the only supplier
for Macintosh-access products (Inlarge and Outspoken for Macintosh). Alva
is now working on
Windows 95 access using a refreshable Braille display.

When asked why it took Alva so many years to get around to pressing seriously
for licensing
agreements with the other producers, Breider said that he was busy building
his company and its
product line.

Breider is pleasant but cautious in conversation. He is convinced that this
technology belongs to his
company, and he intends to get the royalties that rightfully belong to him.
The American companies are
just as convinced that the technology was generally available before the Alva
patent applications were
filed. It seems pretty clear that this disagreement will be fought out in
court and that, whether it's large
licensing fees or fat lawyers' fees, blind consumers will be paying for the
final resolution of this battle.